Harries, C.J.This is a first appeal brought by plaintiffs from a decree of the learned subordinate Judge of Muzaffarpur dismissing their claim for a declaration and recovery of possession of certain property.

2. The plaintiffs were the widows of one Shivaraj who died in the month of September 1934. They alleged that Shivaraj died in a state of separation and that they as his widows were entitled to possession of the property left by Shivaraj. The defendants were the male members of another branch of the family and they claimed that Shivaraj died in a state of jointness with them and, therefore, the plaintiffs had no right to possession of any property and that their only rights were to maintenance out of the joint family properties. The learned subordinate Judge eventually came to the conclusion that Shivaraj died in a state of jointness and therefore dismissed the plaintiffs claim in its entirety.

3. In this appeal the plaintiffs-appellants have urged that certain important documents were tendered by them in evidence in the Court below but were wrongly rejected by the learned subordinate Judge. These documents have been printed in a supplementary paper-book. The first document, which is printed at pp. 1 and 2 of that supplementary paper-book, is headed "Statement of the exclusive share of Babu Sheoraj Nandan Singh in mauza Dagar, 1927-28," and, on the face of it, the document appears to have been signed by Shivaraj and Harihar Prasad Singh who is defendant 2 in the suit. The other document is printed at pp. 3 to 10 of the supplementary paper-book and is called "Kurra Barawarda of village Madanpur." This document also appears to bear the signature of Shivaraj and Ramhit Singh, defendant 1 in this suit. Both the documents are papers connected with a partition, and the learned Judge was of opinion that they were not admissible in evidence by reason of the fact that they were not registered. He accordingly refused to admit them in evidence for any purpose whatsoever. Sir Sultan Ahmed who has appeared on behalf of the appellants concedes that these two documents cannot be admissible in evidence to prove an actual partition by metes and bounds or to prove what share was allotted to any particular person by such partition.

4. As the documents have not been registered as required by Section 17, Registration Act, they are inadmissible to prove partition or possession of property on partition. Counsel, however, has strongly urged that these documents are admissible to establish the status of Sheoraj Singh or to establish the nature of his possession over property held by him at his death.

5. On the other hand, Mr. S.M. Mullick, who appears on behalf of the respondents, contends that as these papers on the face of them suggest partition they should not be admitted for any purpose whatsoever. In my judgment, the learned Judge was wrong in refusing to admit these documents in evidence. It is true that in the absence of registration they are not admissible in evidence to prove actual partition and to prove what was allotted to any person by that partition. They are, however, in my view, clearly admissible to establish the status of Shivaraj or to establish separation in the family and to rebut any case that Shivraj died in a state of jointness.

6. A similar point arose for consideration in Vatrapu Subbarao alias Pamireddi Subbareddi and Others Vs. Pamireddi Mahalakshmamma, . In that case it was held that a document between two persons containing lists of properties that fell to the share of each on a partition, written in duplicate, signed by each and attested and intended to be evidence of the partition, must be regarded as the formal and operative deed of partition between them; and unless registered as required by Section 17, Registration Act, such documents are inadmissible in evidence to prove what properties were taken by each on partition.

7. The Court, however, held that the documents were admissible to prove a division in status. There is no real distinction between this Madras case Vatrapu Subbarao alias Pamireddi Subbareddi and Others Vs. Pamireddi Mahalakshmamma, and the present case before the Court. The learned Judges of the Madras High Court relied upon a decision of their Lordships of the Privy Council in Varada v. Pillai Jeevarathnammal AIR 1919 P.C. 44 where their Lordships held that though a certain unregistered document was not admissible to prove a gift it was admissible in evidence to show the character of the possession of the alleged donee. There was a conflict of opinion concerning this question in the past; but such conflict appears to have now been resolved, and the trend of judicial authority is to the effect that documents of a nature of the two excluded documents in the case are admissible in evidence not to prove partition or to prove what properties were allotted but for the limited purpose of proving separation and the status of any of the parties. That being so, the two documents to which I have referred should have been admitted in evidence and considered if they were satisfactorily proved by the plaintiffs who adduced them.

8. In my view these documents must; be considered before findings of fact can be arrived at upon the question of separation or otherwise.

9. Both parties agree that the most convenient course would be to remand the case to the Court below to enable the plaintiffs to tender these two documents in evidence. The plaintiffs will be entitled to call evidence as to their execution and custody and generally to prove their genuineness. The defendants on the other hand will be entitled to call evidence directed to establish that the documents are not genuine and should not be accepted as such.

10. After the Court below has considered the matter, it will forward its report to this Court as soon as convenient. A period of three months should be sufficient for the lower Court to hear this evidence and to forward its report to this Court. Sir Sultan Ahmed has also argued that certain other documents were wrongly rejected by the Court below, apparently, on the ground that they were tendered too late. His complaint is that a document tendered on behalf of defendants-on 6th April 1936 and exhibited on 12th April 1936, has been relied upon by the learned Judge, whereas certain documents which were tendered before this date were rejected as being tendered too late. No copies of these documents, the rejection of which is now complained of, have been filed in this Court, and it is impossible for us to say whether the documents were or were not rightly rejected. The matter is left open, and the appellants may ask this Court when, the matter again comes before it for hearing to admit the documents if the Court thinks that they were wrongly rejected.

11. It was reported by the office in this case that there was a deficiency of court-fee in the Court below. The suit was really a suit for possession, but the office appears to think that it was a suit for a declaration and consequential relief, namely possession of the property following the making of a declaration. It is true that something in the nature of a declaration was asked for in the plaint, but in reality the suit was an ordinary suit for possession.

12. In all cases where possession is claimed, the plaintiffs must establish title, and all that the plaintiffs claimed in this case was possession after they had established that they were entitled to it. They were not claiming, firstly, a declaration which would give them a title and then consequential relief after obtaining such relief. It was wholly unnecessary for the plaintiffs in this case to obtain any declaration whatsoever before they were entitled to possession. A recent Special Bench of this Court held that cases of this kind must be regarded as suits purely for possession, and that being so, the court-fee levied in the Court below was sufficient.

13. The result, therefore, is that this case is remanded to the Court below to receive in evidence the two documents to which I have referred and which are printed in the supplementary paper-book and to receive evidence of both parties relating to the same.

14. The learned Judge, after hearing the witnesses and the cross-examination, will forward his report upon these two documents to this Court within a period of three months from to-day. Fourteen days time is given to the parties to make any objections they may desire to make to the report of the learned Judge when received. Let the case be listed before this Bench at the expiry of the fourteen days for objection.

Manohar Lall J.

I agree.